The EU Copyright Directive and publishers content

14 February 2020

Author: Olivia O'Kane
Practice Area: Media and Defamation
Sector: Brexit

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The UK’s exit from the EU is now well under way with the implementation period set to end at 11pm on 31st December 2021. However, there are still many questions to be answered. As most EU law has already been incorporated into the UK system there is unlikely to be much immediate change. However, with the Copyright Directive set to be implemented by all EU member states by 7th June 2021, the UK may quickly become the odd one out.

The 'Link Tax'

One of the most controversial aspects of this Directive is the 'Link Tax'. This provision provides press publishers with the right to authorise or prohibit the reproduction of their online publications. It further provides that online content sharing platforms may face liability if they share content without prior authorisation. In practise, this will see online content providers obtaining licenses from publishers before being able to link news article on their site. Publishers will have the option to set a fee for this.

A number of practical exemptions have been built into the directive permitting the act of hyperlinking, "legitimate private and non-commercial use of press publications by individual users," copying an "insubstantial" part of a work and copying in the course of academic or scientific research. However, as of yet there is little practical guidance as to what these exemptions mean and the scope of the protections afforded to social media users and or the platform hosting the content.

The EU Copyright Directive has been welcomed by publishers and creatives as a means of levelling the playing field with larger content providers. In the era of fake news, the survival of reliable new sources must be a priority. However, it has faced a backlash from tech giants such as Google, YouTube and Facebook as well as from the general public. Tech giants believe that reforms are too burdensome and will negatively impact upon public’s experience online, while the public have expressed concern about freedom of speech and information sharing. With so much dissatisfaction, this is an area to watch.

Brexit

The impact of this EU Directive in the UK remains unclear. Prime Minister, Boris Johnston has set himself against the EU Directive, describing it as "terrible for the internet" and "a classic EU law to help the rich and powerful." On 24th January 2020, Chris Skidmore MP announced that the UK will not be implementing the EU Copyright Directive. However, with radical modernisation happening across the channel similar change in the UK seems inevitable.

With much to be decided in the coming year it is important for clients to remain vigilant and seek clear and reliable advice.

For further information, please contact Olivia O’Kane.

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